S.H. v. J.Z.C. Date:, 2017 BCPC 87

Citation: S.H. v. J.Z.C. Date: 20170317 2017 BCPC 87 File No: F38766 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Family IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.H. APPLICANT AND: J.Z.C. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.J. FERRISS

Appearing in person: S.H. Appearing in person: J.Z.C. Place of Hearing: Surrey , B.C. Date of Hearing: March 3, 2017 Date of Judgment: March 17, 2017 [ 1 ] S.H. (“Ms. H.”) and J.Z.C. (“Mr. C.”) are the parents of T.H. (“T.”), who was born on [omitted for publication]. She is now [omitted for publication] years of age and soon to be [omitted for publication]. [ 2 ] Ms. H. filed this application on March 2, 2016 asking for a finding that she is the sole guardian of T., an order giving her all of the parental responsibilities, an order for parenting time or contact for T. with Mr.

C., and an order for child support. [ 3 ] A final child support order was made by consent by me on June 7, 2016. The order imputed Mr. C.’s income at $38,445.00 per year, his line 150 income from his tax returns for the year 2015, and ordered him to pay child support of $350.00 per month commencing June 17, 2016 and payable on the 15 th day of each and every month thereafter, for so long as T. remains entitled to be supported pursuant to the Family Law Act ( FLA ) or until further order of the court. [ 4 ] The matters currently before me are Ms.

H.’s application for guardianship, parental responsibilities, parenting time or contact, and retroactive child support and special and extraordinary expenses commencing March 20, 2012, because that is the date of their final separation. Mr. C. wants to be a guardian of T. and to have parental responsibilities. Issues : [ 5 ] The issues in this case are: 1. Is Mr. C. a guardian of T. under s. 39(1) or (3) of the FLA ? 2. If he is, how should the parental responsibilities be shared? 3. What parenting time or contact should Mr. C. have with T.? 4. Should Mr.

C. be ordered to pay child support between March 2012 and June 2016? 5. Should Mr. C. be ordered to pay a portion of special or extraordinary expenses? Is Mr. C. a Guardian of T. Under the FLA ? [ 6 ] Ms. H. and Mr. C. were very young parents at the time of T.’s birth and they had made the very difficult decision to give her up for adoption. However, when she was born, they could not bring themselves to give her away and decided to raise her themselves. This was a very last minute decision for them and no planning had been made on their parts. [ 7 ] Ms. H. was living at her mother’s home at the time. Mr.

C. was living elsewhere and working as a roofer ten to twelve hours per day, five to six days per week. Ms. H. says, at first, he saw T. approximately two or three times per week. On the weekends, he took T. and Ms. H. on outings. [ 8 ] Within four to six months, they managed to get enough money together to find their own place where they lived together with T. for six or seven months. They moved back into Ms. H.’s mother’s house for a short period of time. Mr. C. moved out after a few weeks, but then they found another place together.

The parties separated and reconciled twice more, before separating permanently at the end of March 2012. [ 9 ] It is common ground that when Ms. H. and Mr. C. were living together, Ms. H. was the primary caregiver for T., as Mr. C. was the one paying the bills. They disagree on how much time Mr. C. cared for T., but he says that when he came home from work he cared for T. about 40% of the time. [ 10 ] After March 2012, T. stayed with Ms. H., and Mr. C. saw her mostly on weekends. [ 11 ] In August 2012, Mr. C. went to Edmonton to find work and stayed there until April 2015.

He came out to see T. two or three times per year in 2013 and 2014. He tried connecting with T. by telephone. He said it was difficult not seeing T., but he had no job to come back to and he was trying to improve his career opportunities. [ 12 ] In April 2015, he moved back to B.C. and lived with his sister in Chilliwack for a while. He started seeing T. almost every weekend from Friday to Sunday. In September 2015 he moved to [omitted for publication], and now lives five minutes away from Ms. H.’s home with his fiancée and his fiancée’s daughter. Ms.

H. says that T. loves him, as well as his fiancée and her daughter. T. spends 90% of her weekends with Mr. C. now. [ 13 ] In her application, Ms. H. says she does not believe that Mr. C. is a guardian of T. because:

[t]he respondent was not residing with the applicant and the child when the child was born. Thereafter, although the respondent and the applicant lived together for a period of time on and off, the respondent did not regularly care for the child. [ 14 ] The relevant provisions under s. 39 of the FLA are as follows: 39. Parents are generally guardians 39(1) While a child's parents are living together and after the child's parents separate, each parent of the child is the child's guardian. . . . . . 39(3) A parent who has never resided with his or her child is not the child's guardian unless one of the following applies: . . . . . (

c) the parent regularly cares for the child. Family Law Act, S.B.C. 2011, c. 25, s. 39 [ 15 ] In this case, s. 39(3) does not apply, as Mr. C. did reside with T. and Ms. H. from the time that T. was six months old and until she was just under two years of age. Section 39(3) would only apply if Mr. C. had never resided with T. Therefore, under s. 39(1), Mr. C. became a guardian of T. when he and Ms. H. began to live together in approximately September 2010, and he continued to be T.’s guardian after their separation.

Parental Responsibilities [ 16 ] From both their demeanour in court and their own testimony, it appears to me that both parents are able to work with each other in raising T. and therefore, the parental responsibilities set out in s. 41 of the FLA will be shared equally. Parenting Time [ 17 ] At trial, the parties were able to agree that they would try a parenting regime of week on and week off, with a review of that

schedule in approximately three months. [ 18 ] On an interim basis, commencing Sunday, March 26, 2017, Ms. H. will have parenting time with T. on alternating weeks; and commencing Sunday, April 2, 2017, Mr. C. will have parenting time with T. on alternating weeks. The times and locations of pick up and drop off between their homes will be as arranged between the parties. [ 19 ] Each party will provide the other party with the names, telephone numbers and addresses of any day care T. attends or any other caregiver she has. [ 20 ] This order is to be reviewed in three months.

Holiday Parenting Time Christmas [ 21 ] Ms. H. says she usually works half a day on Christmas Eve and then goes out with T. to dinner at her aunt’s home. T. and she spend Christmas Day together and then they go to dinner at Ms. H.’s grandparents’ home. She works on Boxing Day. She says these are large family gatherings and T. will miss out on them if she is at Mr. C.’s. [ 22 ] Mr. C. says he wants to have T. for some of the important days at Christmas, and particularly wants some stability in this regard.

He is getting married this August. [ 23 ] I agree that it is in T.’s best interests to spend time with both of her parents on the important days during Christmas. The Christmas holidays will alternate as follows: • In odd numbered years, Mr. C. will have parenting time from noon on Christmas Eve until noon on Christmas Day and Ms. H. will have parenting time from noon on Christmas Day until Boxing Day at a time to be arranged between the parties. • In even numbered years, Ms. H. will have parenting time from noon on Christmas Eve until noon on Christmas Day and Mr.

C. will have parenting time from noon on Christmas Day until Boxing Day at a time to be arranged between the parties. [ 24 ] Mr. C. will have parenting time on Father’s Day commencing at 10:00 a.m. and Ms. H. will have parenting time on Mother’s Day commencing at 10:00 a.m. [ 25 ] The parties will each have parenting time on T.’s birthday as arranged between the parties. “Retroactive” Child Support [ 26 ] Ms. H.’s application is for retroactive child support and special or extraordinary expenses under s. 7. However, there are two ways to look at this issue: (1) as an application for retroactive child support; or

(2) as an application for confirmation of an agreement already made between the parties and a determination of any arrears owing under that agreement. [ 27 ] I find that the latter approach is the correct approach in this case for the following reasons: 1. both parties acknowledge that, when they separated, they had an oral agreement under which Mr. C. would pay Ms. H. $300.00 per month child support and half of the day care costs (the “Agreement”); 2. the FLA, s. 6, says that the parties may make an agreement to resolve a family law dispute and that agreement is binding on the parties.

The agreement is binding whether or not there is consideration, the agreement has been made with the involvement of a family dispute resolution professional, or the agreement is filed with a court. The

section does not use the term “written agreement,” only agreement; 3. the Supreme Court of Canada in S. (D.B.) v. G. (S.R.) , 2006 SCC 37 stated that it will usually be inappropriate to order retroactive child support more than three years prior to the formal application being filed. As this application was served on Mr. C. on March 6, 2016, retroactive support could only commence from March 6, 2013, a year after the Agreement was made. I find that approaching the application as one for retroactive support would defeat the intention of s. 6 of the FLA ; and 4. S. (D.B.) v.

G. (S.R.) sets out factors which must be considered before ordering retroactive child support, such as whether there has been a delay in applying for child support and bad faith. Those factors are not of assistance in a case such as this where there has already been an agreement between the parties, albeit, not in writing. [ 28 ] The difficulty in this case is that the accounting records have not been well kept by either party for 2012 and 2013. From 2014 onwards, Ms. H. kept a bank account for Mr. C.’s e-transfers. [ 29 ] Generally, Ms. H. says that she would attribute the appropriate portion of Mr.

C.’s payments to his half of the day care expense and the remainder would be applied to the $300.00 per month child support. She would write a receipt to him for his half of the child care only. 2012 [ 30 ] After the parties separated at the end of March 2012, Mr. C. says he did not pay for April 2012, as he had paid half of the rent for their apartment already. He recalls starting to pay $600.00 per month in either May or June 2012. He says Ms. H. did not want to pay the bank fees for a bank account, so he sent the money to his sister to pay the monthly payments when he left for Edmonton in August 2012.

He no longer has records from his bank account at that time as he closed it. He was told to pay the child support even though she was not giving him receipts. [ 31 ] Ms. H. says she did not receive any financial support from him in 2012. She says that they argued about the fact he was continuing to pay for a rental accommodation in B.C. when he was living in Edmonton, Alta., and not paying child support or day care costs. [ 32 ] She says the child care receipt she produced at court for $3,160.00 was the full amount paid for child care between May and December 2012.

She claimed that amount on her income tax returns for 2012. Mr. C.’s tax return does not show any claim for child care on his 2012 income tax return. [ 33 ] I find it likely that Mr. C. did make payments as he recalled for the first couple of months starting in May 2012. The Agreement was new and he said that was the amount he felt he could afford. Therefore, I am crediting him with payment of $1,200.00: $600.00 towards child care and $600.00 towards child support. Accordingly, Mr. C. owes Ms. H. the sum of $980.00 for his half of the day care in 2012 and six months of child support in the sum of $1,800.00.

He owes a total of $2,780.00 for 2012. 2013 [ 34 ] In December 2013, Ms. H. set up an account so that she could deposit Mr. C.’s electronic transfers into it. It shows a payment of $300.00 in December 2013. Ms. H. says that Mr. C.’s sister gave her $300.00 or $400.00 a few times that year but there was no set amount or any regularity. Her evidence was that he paid half of the day care, being $4,120.00, but not much more. [ 35 ] Mr. C. says he paid $600.00 per month. Sometimes he sent money for clothes for T.

He did not provide receipts or any proof of payment for the $7,200.00 he claims to have paid for that year, except for child care of $4,120.00. [ 36 ] If Mr. C. had paid $600.00 per month that year, then the deposit made in December would have been for more than $300.00, and so the evidence before me does not support his testimony. I find that he paid $600.00 towards child support and paid $4,120.00 for child care. Accordingly, he owes Ms. H. $3,000.00 for 2013. 2014 [ 37 ] For the year 2014, Ms. H.’s records show that Mr. C. paid $7,975.00. Ms. H. agrees two other payments of $300.00 were made by Mr.

C.’s sister that year for a total of $8,575.00. Half of the cost for day care that year was $4,800.00 and together with $3,600.00, in the agreed upon child support, comes to $8,400.00. Therefore, Mr. C. overpaid the agreed upon amount by $175.00. 2015 [ 38 ] For the year 2015, Mr. C. paid $4,400.00. [ 39 ] His half of the day care expenses was $1,870.00 and, together with the agreed upon child support of $3,600.00, he should have paid $5,470.00. Therefore, he owes $1,070.00 to Ms. H. for that year.

January to June, 2016 [ 40 ] For the year 2016, Mr. C. paid Ms. H. no support until the Final Order was made on June 7, 2016 for $350.00 per month, which was based on his 2015 income tax return showing an income of $38,445.52. [ 41 ] Mr. C. owes Ms. H. the sum of $1,500.00 for the child support owing from January to May 2016. [ 42 ] Ms. H. says that when T. started going to school full time in September 2015, the day care costs were for after school only and were $22.50 per day. On average, the net monthly cost was $472.50. For the summer months, her day care costs were $40.00 per day for the full day. [ 43 ] Mr.

C. therefore owes Ms. H. half of the day care costs for the first six months of 2016 which amounts to $1,417.50. The total owing as of June 30, 2016, is $2,917.50. July 2016 to present [ 44 ] Ms. H. testified that she was told to take six weeks off of work by her doctor in the summer of 2016. She cancelled day care and took care of T. herself the whole summer. She went back to work in September 2016 and T. goes to the Boys and Girls Club after school, which costs $100.00 for the school year. It is an extra $20.00 per day for school holidays, such as spring and winter break.

Accordingly, day care is no longer the expense that it was. [ 45 ] As the parties will be in a shared parenting arrangement commencing March 26, 2017, the Guideline amount of child support may need to be changed under s. 9 of the Guidelines. Either party is at liberty to make such an application. Fairness of the Agreement [ 46 ] I have considered whether the Agreement was fair. Mr. C.’s income has varied each year since 2012 such that sometimes $300.00 per month was more than his guideline amount and sometimes it was less.

However, if I look at the average guideline amount he would have paid over the years, $300.00 per month was a fair amount. Special and Extraordinary Expenses [ 47 ] Ms. H. also requested Mr. C.’s contribution to special expenses for T. to attend [T.’s gym] which averages $70.00 per month since September 2016. At 53% of the family income based on their 2015 tax returns, Mr. C. would be responsible for $37.10 each month for a total of $259.70 as of March 15, 2017.

He will contribute $37.10 each month commencing April 1, 2017 for this extraordinary expense. [ 48 ] There is a dental treatment for T. dated May 31, 2016 and Mr. C. is responsible for 53% of the $90.60, being $48.02. Commencing April 1, 2017, Mr. C. will reimburse Ms. H. for 53% of all expenses for dental care within 30 days of Ms. H. sending him a copy of the invoice. [ 49 ] Ms. H. claimed reimbursement of MSP payments for T. She says her mother carried T. on her MSP plan but did not provide receipts. Commencing March 1, 2016, Mr. C. is to pay 53% of T.’s MSP payments of $50.00, being $26.50 upon Ms.

H. providing receipts of payment for each month. Those receipts may be with respect to payments made by her mother for T.’s MSP. [ 50 ] I do not find that the Children’s Horse Camp expense of $69.99 was an extraordinary expense. Exchange of Financial Information [ 51 ] There will also be an order that the parties are to exchange tax returns by June 1 of each calendar year in order to determine if adjustments are needed for child support and special or extraordinary expenses based on their incomes. Any adjustments will be made commencing July 15 of the year following the tax return.

Summary of Orders [ 52 ] Mr. C. and Ms. H. are the guardians of T. under s. 39(1) of the Family Law Act . [ 53 ] There will be an order that: 1. Under s. 40(2) of the Family Law Act , the guardians will share equally all parental responsibilities for T. 2. On an interim basis, commencing Sunday, March 26, 2017, Ms. H. will have parenting time with T. on alternating weeks and commencing Sunday, April 2, 2017, Mr. C. will have parenting time with T. on alternating weeks. The times and locations of pick up and drop off between their homes will be as arranged between the parties. 3.

Each party will provide the other party with the names, telephone numbers and addresses of any day care T. attends or any other caregiver she has. 4. The order respecting the parenting time

schedule is to be reviewed in three months. 5. The Christmas holidays will alternate as follows: • In odd numbered years, Mr. C. will have parenting time from noon on Christmas Eve until noon on Christmas Day and Ms. H. will have parenting time from noon on Christmas Day until Boxing Day at a time to be arranged between the parties.

• In even numbered years, Ms. H. will have parenting time from noon on Christmas Eve until noon on Christmas Day and Mr. C. will have parenting time from noon on Christmas Day until Boxing Day at a time to be arranged between the parties. 6. Mr. C. will have parenting time on Father’s Day commencing at 10:00 a.m. and Ms. H. will have parenting time on Mother’s Day commencing at 10:00 a.m. 7. The parties will each have parenting time on T.’s birthday as arranged between the parties. 8. Mr. C. owes $9,592.50 to Ms. H. in child support arrears as of June 30, 2016; provided Mr.

C is at liberty to apply to change the amount of child support arrears if he provides receipts for additional payments. I am seized of any such applications. 9. Mr. C. owes $259.00 for [T.’s gym] expenses as of March 17, 2017. 10. Commencing April 1, 2017, and continuing on the first day of each and every month thereafter, Mr. C. will pay 53% of [T.’s gym] expense to Ms. H. in the amount of $37.10. 11. Commencing April 1, 2017, Mr. C. must reimburse Ms. H. for 53% of all expenses for dental or medical care or prescriptions within 30 days of Ms. H. sending him a copy of the invoice. 12.

Commencing March 1, 2016, Mr. C. is to pay 53% of T.’s MSP payments of $50.00, being $26.50, upon Ms. H. providing receipts of payment for each month. Those receipts may be with respect to payments made by her mother for T.’s MSP. 13. The parties are to exchange tax returns by June 1 of each calendar year in order to determine if adjustments are needed for child support and special or extraordinary expenses based on their incomes. Any adjustments will be made commencing July 15 of the year following the tax return. The parties may make these adjustments to support by way of written agreement or court order. 14.

Either party is at liberty to make an application to change the Guideline child support to reflect the shared parenting arrangements under s. 9 of the Guidelines. The Honourable Judge K.J. Ferriss Provincial Court of British Columbia